G Laffy v Wkcic Group T/A Capital City College Group & Anor

In direct discrimination claims, a tribunal must apply the two-stage burden of proof in Equality Act 2010, section 136, unless it makes positive findings about the reason for the treatment. A difference in status and treatment alone does not establish a prima facie case. The claimant must identify facts from which discrimination could properly be inferred. If the burden shifts, the respondent must establish an adequate non-discriminatory explanation. An appellate tribunal will not interfere with factual findings that were open to the employment tribunal on the evidence. A tribunal may find, as a non-discriminatory explanation, that an employer did not investigate or discipline after a complainant withdrew a serious allegation.

Mr Laffy appealed against the decision of an employment tribunal, whose reasons were sent to the parties on 30 July 2024. The tribunal upheld his constructive unfair dismissal claim but dismissed his claims for harassment, direct discrimination on grounds of race, sex and age, victimisation and holiday pay. The appeal was limited to the direct discrimination claims against the employer.

The permitted ground alleged that the tribunal had wrongly concluded that there were no facts from which it could infer discrimination and had failed to reverse the burden of proof. The central issues were whether the tribunal had applied the correct approach under section 136 of the Equality Act 2010, and whether its findings that the employer had acted for non-discriminatory reasons were open to it on the evidence.

1. Appeal dismissed. The employment tribunal correctly directed itself on the law and reached factual conclusions that were open to it.
2. The tribunal was entitled to use the “reason why” approach. Where positive findings establish the reason for the treatment, it is unnecessary to revert to the burden of proof provisions. The tribunal was also entitled to apply the two-stage approach under section 136 of the Equality Act 2010.
3. For the first two allegations, the factual premises were not established. The employer had acted on the claimant’s complaints and had engaged with his request for evidence, even though it did not provide the evidence requested. The burden of proof therefore did not arise on those allegations.
4. For the remaining allegations, the tribunal was entitled to find that the employer had not investigated or disciplined the second respondent because she had declined to pursue a formal allegation. The fact that the employer did not investigate or discipline her, considered alone, was insufficient to establish facts from which discrimination could be inferred.
5. Even if the burden had shifted, the tribunal made a clear alternative finding that the employer had provided an adequate non-discriminatory explanation. The employer’s decision to treat the withdrawn allegation as closed, reinforce professional standards and seek to move the parties beyond their dispute was unrelated to race, sex or age.
6. The matters relied on by the claimant did not amount to “something more” than a difference in status and treatment. The decision in Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust was concerned with materially different facts and did not assist the appeal. The tribunal’s conclusions were not errors of law merely because the claimant considered the employer’s approach unfair or unwise.

• Employment Tribunal: dismissed the claims for harassment, direct race, sex and age discrimination, victimisation and holiday pay, while upholding the constructive unfair dismissal claim. Reasons were sent on 30 July 2024.
• Employment Appeal Tribunal: dismissed the appeal against the dismissal of the direct discrimination claims.